92 Decision Citation: BVA 92-25013
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-01 064 ) DATE
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THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from September 1961 to
February 1966. This is an appeal from a December 1990
rating action by the Regional Office, Muskogee, Oklahoma,
denying entitlement to a permanent and total disability
rating for pension purposes. The notice of disagreement was
received in July 1991. The statement of the case was issued
in August 1991. The substantive appeal was received in
January 1992. The case was received at the Board of
Veterans' Appeals (hereinafter the Board) in February 1992.
The veteran is represented by The American Legion and that
organization submitted written argument on his behalf in
April 1992. The case is now ready for appellate review.
REMAND
When the veteran was examined by the VA in October 1990, the
diagnoses on the general medical examination included
symptomatic knees and intermittent low back pain. On the
special ear, nose and throat examination, diagnoses were
made of severe deviated nasal septum and allergic rhinitis.
The Board notes that, although the regional office in
reviewing the veteran's claim for a permanent and total
disability rating for pension purposes has assigned
disability evaluations for several disabilities, disability
evaluations have not been assigned for knee and low back
disorders and the deviated nasal septum and allergic
rhinitis mentioned above.
The Board notes also that the statement of the case that was
sent to the veteran did not include the appropriate
diagnostic codes and a discussion of their applicability to
the veteran's disabilities. Also, although it was indicated
that the veteran's disabilities did not prevent him from
engaging in some type of substantially gainful employment,
there was no discussion as to whether a permanent and total
disability rating for pension purposes could be assigned
under the "average person" standard set out in 38 U.S.C.A. §
1502(a)(1) (West 1991).
In view of the aforementioned matters, findings of fact and
conclusions of law are being deferred pending a REMAND for
the following action:
1. Copies of all available VA outpatient
treatment records of the veteran dated
since July 1991 should be obtained and
made part of the record.
2. The regional office should assign, in
accordance with the Schedule for Rating
Disabilities, a disability evaluation for
each of the veteran's disabilities,
including the knee and low back
disorders, deviated nasal septum and
allergic rhinitis and review the
veteran's claim by considering the
"average person" standard under
38 U.S.C.A. § 1502(a)(1) as well as the
"unemployability" standard under
38 C.F.R. §§ 4.17 and 3.321(b)(2).
3. If the determination remains adverse
to the veteran, he and his representative
should be sent a supplemental statement
of the case and be afforded the
appropriate time in which to respond.
The supplemental statement of the case
should include the appropriate diagnostic
codes and a discussion of their
applicability to the veteran's
disabilities as well as a discussion of
the two standards by which a permanent
and total disability rating for pension
purposes may be assigned, i.e., the
"average person" standard and
"unemployability" standard.
When the above action has been completed, the case should be
returned to the Board for further appellate consideration,
if otherwise in order. No action is required of the veteran
unless he receives further notice. The purpose of this
REMAND is to ensure that the requirements of due process of
law are satisfied. The Board intimates no opinion as to the
disposition warranted in this case pending completion of the
requested action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JAMES R. ANTHONY (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).